Viner

In our initial decision in this case ( Viner v. Sweet (Sept. 28, 2001, B138149) [superseded by grant of review Dec. 19, 2001 (S101964)] ( Viner I )), we held to establish causation in fact the plaintiffs in a transactional legal malpractice action are not required to prove the opposing side in contract negotiations would have given them a better deal than they actually obtained had their attorney not been negligent and affirmed most of the jury's multimillion dollar damage award in favor of plaintiffs Michael Viner and Deborah Raffin Viner. The Supreme Court reversed, holding "just as in litigation malpractice actions, a plaintiff in a transactional malpractice action must show that but for the alleged malpractice, it is more likely than not that the plaintiff would have obtained a more favorable result." ( Viner v. Sweet (2003) 30 Cal.4th 1232, 1244 , 135 Cal.Rptr.2d 629 , 70 P.3d 1046 ( Viner II ).) The Court remanded the matter "for proceedings consistent with the views expressed here." ( Ibid. )

Having received supplemental briefing after remand and heard further oral argument from the parties, we now conclude the trial court erred in denying the defendant…

*1221 Opinion

In our initial decision in this case (Viner v. Sweet (Sept. 28, 2001, B138149) [superseded by grant of review Dec. 19, 2001 (S101964)] (Viner I)), we held to establish causation in fact the plaintiffs in a transactional legal malpractice action are not required to prove the opposing side in contract negotiations would have given them a better deal than they actually obtained had their attorney not been negligent and affirmed most of the jury’s multimillion dollar damage award in favor of plaintiffs Michael Viner and Deborah Raffin Viner. The Supreme Court reversed, holding “just as in litigation malpractice actions, a plaintiff in a transactional malpractice action must show that but for the alleged malpractice, it is more likely than not that the plaintiff would have obtained a more favorable result.” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1244 [ 135 Cal.Rptr.2d 629 , 70 P.3d 1046 ] (Viner II).) The Court remanded the matter “for proceedings consistent with the views expressed here.” (Ibid.)

Having received supplemental briefing after remand and heard further oral argument from the parties, we now conclude the trial court erred in denying the defendant lawyers’…

I respectfully dissent.

In this case the California Supreme Court granted review to consider the pure legal issue whether plaintiffs in transactional legal malpractice cases must prove they would have obtained a more favorable result but for their lawyers’ malpractice. The Supreme Court’s opinion decided such a finding was required and reversed this court’s decision affirming a judgment against the lawyer accused of malpractice and his firm. Our high court then remanded the matter to this court for further proceedings consistent with its opinion. Consistent with these instructions, I conclude it is neither feasible nor just to resolve this cause without offering the opportunity for a retrial to a properly instructed jury under conditions specified in this opinion.

My colleagues deny that opportunity by finding the evidence at the first trial insufficient to prove this “more favorable result” element, which" was not at issue under the instructions given at the first trial. The majority then second guesses what evidence and argument the jury would hear at a retrial where that instruction was given, and concludes it would be insufficient as well.

I differ on both counts. I first…